P. v. Hester 11/7/01 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F034897

Case Date: 03/14/2002

Preview:Filed 11/7/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE F034897 Plaintiff and Respondent (Super. Ct. No. 07856) v. DONTEE TYREE HESTER,

OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge. Jo Anne D. Roake, under appointment by the Court of Appeal, for Plaintiff and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Lloyd G. Carter and Michelle L. West, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Dontee Tyree Hester (Hester) appeals his conviction for possessing a gun which derived from his plea after the trial court denied his motion to suppress. He argues the trial court erred in denying the motion to suppress and we agree. DISCUSSION Leon Anderson (Anderson), Michael Anthony Hanks (Hanks) and Hester (collectively defendants) were in a Chevrolet stopped by Bakersfield Police Officers Gary Carruesco and Martin Heredia in the early morning hours of August 7, 1999. A gun was found in the car and all of the occupants were arrested and charged with conspiracy to possess a handgun by gang members. The defendants moved to suppress the gun and to dismiss the indictment arguing that Carruesco and Heredia did not have probable cause to stop the vehicle and there was no evidence of a conspiracy. The trial court denied both motions. Hester and Anderson then pled guilty. I. Hester's Right to Contest the Stop The rights provided by the Fourth Amendment are personal, and the proponent of those rights must prove that the challenged governmental action infringed on his or her rights. (United States v. Kimball (1st Cir. 1994) 25 F.3d 1, 5.) The People argue Hester does not have a right under the Fourth Amendment to contest the stop of the vehicle because he did not have a legitimate expectation of privacy in the vehicle that was protected by the Fourth Amendment. The People rely on Rakas v. Illinois (1978) 439 U.S. 128, People v. Jackson (1992) 7 Cal.App.4th 1367, and United States v. Carter (6th Cir. 1994) 14 F.3d 1150 which hold that a passenger does not have a Fourth Amendment right to privacy in the passenger compartment of a vehicle when the passenger disclaims any interest in the items seized. The People's reliance on the cited cases is misplaced because they fail to recognize the distinction between a stop of a vehicle and a search of a vehicle. (United States v. McKneely (10th Cir. 1993) 6 F.3d 1447, 1450.) The question is not whether the 2.

search of the Chevrolet was supported by probable cause. The question is was there a reasonable suspicion that a crime had been committed to support the initial stop of the Chevrolet? Accordingly, the issue is whether a passenger has the right to contest the initial stop of the vehicle. The People ignore those cases that have addressed this issue. In People v. Grant (1990) 217 Cal.App.3d 1451, 1458 this court held that a passenger may challenge an unlawful stop of a vehicle because the stop intrudes on his personal liberty and freedom of travel. In People v. Bell (1996) 43 Cal.App.4th 754 the defendant argued that the investigating officer unlawfully extended the traffic stop of the vehicle in which he was riding by questioning the driver on issues unrelated to the traffic stop. The court noted that the majority of both state and federal opinions concluded that the passenger was detained and could challenge the stop as unlawful. (Id. at pp. 760-765.) The appellate court concluded that the defendant was detained as a result of the traffic stop and that if the driver was unlawfully detained, so was the defendant. (Ibid.; Accord, United States v. Kimball, supra, 25 F.3d 1, 5 ["When a police officer effects an investigatory stop of a vehicle, all occupants of that vehicle are subject to a seizure, as defined by the Fourth Amendment. The fact that a defendant is a passenger in a vehicle as opposed to the driver is a distinction of no consequence in this context."]; United States v. McKneely, supra, 6 F.3d at. p. 1450.) The reasoning of Bell and Grant has not received universal acceptance. In People v. Cartwright (1999) 72 Cal.App.4th 1362 the defendant was a passenger in a car lawfully stopped for a Vehicle Code violation. When the driver was unable to produce registration or a driver's license, the officer asked the driver for permission to search the vehicle for the registration. When the driver agreed the officer asked the defendant to exit the vehicle and if there was anything illegal inside the vehicle. The defendant responded that a friend left drugs in her purse.

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The defendant argued that the search was illegal because the driver was subject to an illegally prolonged detention and, therefore, her consent was invalid. The appellate court concluded that the defendant was not detained until the officer ordered her to sit on the curb. (People v. Cartwright, supra, 72 Cal.App.4th at p. 1365.) Accordingly, since the defendant was not detained, her Fourth Amendment rights were not violated. In so concluding, the court rejected what it described as the position of the majority of courts in California. (Id. at pp. 1365-1366.) The Cartwright court relied on Maryland v. Wilson (1997) 519 U.S. 408. The issue in Maryland was whether an officer could order the passenger in a vehicle stopped for a traffic violation out of the vehicle without violating the passenger's Fourth Amendment rights in the absence of any reason to suspect the passenger of wrongdoing. The issue was not whether the stop of the vehicle was unlawful or unlawfully prolonged. The Supreme Court concluded that concerns for officer safety outweighed the passengers interest in personal liberty because, as a practical matter, the passenger was already stopped and the only change in circumstance was that the passenger now had to wait outside of the vehicle for completion of the stop. (Id. at pp. 413-414.) We find no authority in Maryland for the proposition that a passenger has no right to challenge the constitutionality of the stop of a vehicle. We also note the absurdity that would result from the application of the Cartwright rationale to this case. Hanks, the driver of the Chevrolet, could move to suppress the handgun by contesting the legality of the initial stop. If successful, the handgun would be suppressed as to the driver and he would be free to go. However, according to Cartwright, the passengers' Fourth Amendment rights would not be implicated because they were not detained when the stop occurred. Accordingly, the passengers would not have any right to suppress the handgun. We also note a significant distinction exists between Cartwright and this case. In Cartwright, the stop of the vehicle was lawful because of a Vehicle Code violation. 4.

Cartwright makes this distinction clear in it's conclusion: "Passengers are not seized within the meaning of the Fourth Amendment simply because they occupy a seat in a vehicle which a police officer stops for a violation of the Vehicle Code." (People v. Cartwright, supra, 72 Cal.App.4th at p. 1369, italics added.) In this case, the Chevrolet was not stopped for a violation of the Vehicle Code. It was stopped because the officers believed that a crime involving not only the driver, but also the passengers, was being committed because each occupant of the vehicle was believed to be a gang member and the officers believed they would find at least one gun in the vehicle. The prosecution was based on the theory that there was a conspiracy to possess the handgun among all the occupants of the vehicle. Therefore, we conclude that each passenger had a Fourth Amendment right that could properly be asserted in a motion to suppress. II. The Suppression Motion Hester complains that Carruesco and Heredia did not have sufficient cause to justify the initial detention of the Chevrolet, and accordingly, any evidence obtained should have been suppressed. The People argue there was probable cause to stop the vehicle. The rules for review of denial of a motion to suppress are well established. This court reviews the explicit and implicit factual findings to determine if they are supported by substantial evidence. (People v. Soun, supra, 34 Cal.App.4th at p. 1507.) We then exercise our independent judgment to determine if the facts found by the trial court establish a seizure in violation of the Fourth Amendment. (Ibid.) Moreover, the rules applicable to search and seizure are also easily stated, if not easily applied. A seizure within the meaning of the Fourth Amendment occurs whenever an individual's liberty is restrained by the police either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave. (People v. Soun, supra, 34 Cal.App.4th 1499, 1515.) Distinctions are drawn between "detentions" and 5.

"arrests," since, although both are seizures under the Fourth Amendment, the constitutional standard for permissible detentions "is of lesser degree than that applicable to an arrest." (People v. Harris (1975) 15 Cal.3d 384, 389.) A detention may be undertaken "if there is an articulable suspicion that a person has committed or is about to commit a crime" (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784), while probable cause for an arrest exists only "when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime." (People v. Price (1991) 1 Cal.4th 324, 410.) We here are concerned with the initial detention of the Chevrolet in which the defendants were traveling. Temporary detention of individuals during the stop of an automobile by the police constitutes a detention under the Fourth Amendment. (Whren v. U.S. (1996) 517 U.S. 806, 809-810.) The reasonableness of official suspicion is measured by what the officers knew before they acted. (Florida v. J.L. (2000) 529 U.S. 266, 271.) Our review of the facts found by the trial court is relatively straightforward since there is virtually no dispute as to what occurred on the night in question. Heredia and Carruesco were on patrol on the night of August 6, and the early morning of August 7, 1999, in an area of Bakersfield which the officers considered to be the territory of the criminal street gang East Side Crips. Heredia and Carruesco were aware that earlier that evening a drive-by shooting had occurred at Casa Loma Park. Two people were killed in that shooting and at least two others were wounded. Some of the victims were members of the criminal street gang Country Boy Crips, a rival to the East Side Crips. Heredia and Carruesco were also aware that the East Side Crips were suspected of being responsible for the shooting. At approximately 12:30 a.m. Heredia and Carruesco observed three vehicles, a Chevrolet, Chrysler and Mazda, driving side-by-side on a three-lane road. The officers followed the vehicles and tried to determine who and how many people occupied the 6.

vehicles using the spotlights on their patrol vehicle. They determined that four Black males between 15 and 25 years of age occupied the Chevrolet, and one of these individuals was Leon Anderson, a person they knew to be a member of the East Side Crips. They also determined that four individuals occupied the Chrysler and that two were Black males of the same age. They could not identify the sex or race of the two rear passengers in the Chrysler. The officers did not observe the number, race or sex of the occupants in the Mazda. The officers could not identify any individual other than Anderson. After following the three vehicles for approximately one-quarter mile, and making the observations described above, Carruesco and Heredia activated the emergency lights on their patrol vehicle and stopped the Chevrolet. Carruesco explained his justification for the stop of the Chevrolet: "Based on the occupants of the vehicle being all black males and the recognition of Mr. Anderson as an East Side Crip, it has been my experience that gang members oftentimes hang out together in large groups because they have strength in numbers and [are] more intimidating in a larger group. [

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